We write separately to express our firm support for the conclusions reached in this
Order and to highlight some of the concerns we hope will shape the Commission's
consideration of future business dealings like the teaming arrangements we deem unlawful
today.

By adopting the Telecommunications Act of 1996, Congress sought to unleash the
resources, expertise and creative energy of firms that have been legally or practically barred
from certain markets, all in the pursuit of one important goal: bringing the benefits of
competition to the American public. Thus, we should expect that firms will continue to vie
with each other to bring newer and better product offerings to their own customers and, if
they are successful, their competitors' customers. Indeed, it is this urge to compete and
innovate that is essential to the proper functioning of a competitive market. And it is this
urge to compete and innovate that has led the defendants to develop the teaming
arrangements at issue, by which they could have brought the benefits of "one-stop shopping"
in telecommunications to their customers and, thus, to themselves.

Yet the Act does not give the Commission a blank slate. In our struggle to implement
the pro-competitive, deregulatory framework envisioned by Congress, fundamental decisions
have been made for us. One of these decisions is that the Bell Operating Companies (BOCs)
may not provide in-region, interLATA telecommunications service until they comply with the
requirements of section 271.(1) Thus, we are duty-bound to ensure that the BOCs' urge to
compete and innovate in the long distance market does not lead them to violate the strictures
of section 271. Because we believe the instant teaming arrangements do, according to the
detailed factual record they have spawned, violate these strictures, it is without hesitation that
we join our colleagues in concluding that the arrangements are barred under section 271.

We also are pleased to support this Order for what it does not conclude. As our
support of this Order suggests, we agree that serious questions remain regarding whether or
not the instant teaming arrangements violate the BOC defendants' equal access and
nondiscrimination obligations under section 251(g). We believe nonetheless that it is both
responsible and prudent that we have expressly declined to make conclusions regarding
section 251(g). First, it is not necessary to reach the section 251(g) question to resolve fully
the dispute before us. As the Order makes clear, the section 271 issues are dispositive with
respect to the legality of these teaming arrangements.

Second, we believe that by declining to reach the section 251(g) question in the
context of this proceeding, we have successfully resisted the temptation to reaffirm
unnecessarily a legal and regulatory regime that Congress required us to reconsider in light of
the changing marketplace. Telecommunications policy is steeped in the history of the
Modified Final Judgment (MFJ). We are all too familiar with the struggles to break up
AT&T and to restrain the pieces of that former monopoly from engaging in anticompetitive
behavior. While we may not, in the short-term, be able to walk completely away from that
history, neither can we allow ourselves to be haunted by "the ghost of the MFJ." Instead, we
must work to exorcise that specter. We must strive to leave behind the fears and rituals of
the MFJ era and adopt new approaches and modes of thinking that are consistent with a
competitive marketplace.(2)

By declining to reach the section 251(g) question in this Order, the Commission has
avoided unnecessarily prejudging our consideration of the equal access and
nondiscrimination obligations contemplated under section 251(g).(3) In light of the relatively
tight time frame occasioned by the referral of these matters from the district courts, we
believe it would have been difficult for us to think through carefully all the complex issues of
interpretation that are associated with applying some of the pre-Act precedent to the facts
presented to us in this proceeding. We also believe that we did not have time, in the context
of this proceeding, to consider all of the issues concerning what equal access or
nondiscrimination obligations should apply to BOCs once they have satisfied section 271.
We describe some of these issues below. Our intention in describing these issues is not to
criticize the other valid questions raised in the Order itself, but rather to share our views
regarding the kinds of considerations we should factor into any future consideration of the
requirements of section 251(g).

Differences in Factual Context. Because the 1996 Act mandates such a radical
change in the framework for regulating telecommunications, we believe we should be
circumspect about how we rely on and extrapolate from MFJ judicial precedent. As the
Qwest teaming arrangements dramatically illustrate, the drive to compete and innovate fueled
by the Act will feed regulators a constant diet of novel and, in many respects, pro-competitive business arrangements. As such, we will constantly find ourselves, as we do
here, with facts that the MFJ court did not consider and perhaps could not have even
imagined.

In light of the likely absence of MFJ precedent directly on point, we do not believe
we would be constrained to give effect to every sentence of every equal access case if we
believe the present facts and circumstances are distinguishable from those of the MFJ era;
rather, we believe we should look to the broad context and purposes of the Act to determine
which general principles should be imported from that precedent and which should not.

Similarly, we should remain cognizant that the overall factual context in which the
pre-Act cases described in section 251(g) were decided is very different from the facts we
see now. These differing facts should, in our view, suggest different expectations that we
should have regarding the threat of anticompetitive conduct and the precautions we should
take to prevent such conduct.(4) Many of the pre-Act cases focused on tearing apart one of
the world's largest, most powerful and most integrated monopolies, i.e., separating "Ma Bell"
from her babies. In contrast, the arrangements we see today and will see in the future may
involve new entrants like Qwest that do not have strong historical ties to the incumbent. The
precedent also originates in a world in which the BOCs were essentially walled off from
several lines of business -- a world that eventually began to erode prior to the 1996 Act(5) and
that was eroded in a more fundamental way by the Act itself.

Strength of the Precedent. Related to this unique, factual context of the equal access
and nondiscrimination precedent is our concern that the psychology of breaking up deeply
entrenched monopolies sometimes led, quite understandably, to sparse analysis and
occasionally vague pronouncements by the courts whose duty was to enforce the MFJ. This
sparseness and vagueness also may have resulted from the fact that the MFJ court conducted
its analysis unconstrained by the intricate web of deregulatory and market-opening
requirements woven into the 1996 Act.(6) Simply put, we believe there are reasonably sound
arguments that some of the MFJ cases do not provide compelling support for importing
propositions that one could glean from these cases to the post-Act context.(7) Thus, we hope
we will consider the strength and weakness of the precedent itself in developing and applying
equal access and nondiscrimination requirements pursuant to section 251(g).

Equal Access in a Post-271 World. In reviewing the legality of future business
arrangements, we also hope we will be especially careful about how equal access and
nondiscrimination requirements apply to companies that are legally authorized to provide
long distance service themselves. For example, as the Order indicates, BOCs are currently
subject to the requirements of both section 271 and section 251(g). Once a BOC satisfies
the requirements of section 271, the question would remain whether a BOC's section 251(g)
obligations would permit it to team or joint venture with other companies to enable BOC
customers to obtain long distance service.

From the perspective of preventing anticompetitive conduct, it seems
counter-intuitive that a BOC, having satisfied section 271, would be able to provide long
distance itself through a section 272 separate subsidiary, but would not be able to team with
Qwest to offer its customers such service. Presumably, we should be more concerned that a
BOC will have the incentive and ability to favor unfairly its own section 272 long distance
affiliate as opposed to a non-affiliated long distance company.(8) In addition, it would strike us
as odd, given the deregulatory emphasis of the Act, that Congress could have intended to
preclude BOCs from being involved in the long distance market in any way other than
through a section 272 separate subsidiary.(9) Similarly, section 251(g) should not be used to
impose any new or additional barriers on carriers entering new markets.

Relationship to Interconnection Obligations in General. In addition, as the
Commission contemplates the requirements under section 251(g), we hope we will think
through carefully how such obligations relate to the interconnection requirements we have
already imposed under section 251 generally.(10) As the Order notes, equal access obligations
originally were meant to respond to the government's contentions that, in interconnecting
their local networks with the networks of the various long distance companies, the BOCs
provided inferior interconnection to AT&T's competitors.(11) In the interest of avoiding
duplicative requirements, the Commission should think carefully about whether the goals
underlying section 251(g) are achieved through the requirements we have already imposed
pursuant to the other provisions of section 251. We also should be circumspect about
expanding obligations under section 251(g) and should be cautious about imposing equal
access and nondiscrimination obligations on BOCs that are different from those imposed on
other incumbent LECs.

Procompetitive Benefits. Finally, in developing and applying the requirements
contemplated under section 251(g), we should not lose sight of the ultimate goal of equal
access and nondiscrimination, which is to bring the benefits of competition to the public.
While new business arrangements involving large incumbent LECs like the BOCs potentially
raise anticompetitive concerns, these arrangements also promote competition by allowing
smaller entrants in long distance or other markets to establish viability in those markets
through creative business relationships with established firms. Such relationships, in turn,
may benefit consumers in the form of lower prices and stronger incentives on all market
participants to match or surpass the new technologies and services used by the entrants. We
believe we also should recognize that entrants' incentive and ability to gain such footholds
through arrangements with the incumbent may turn, in part, on the degree to which the
entrant can differentiate itself in the marketplace.

Thus, in thinking through the extent to which equal access and nondiscrimination
requirements should apply to carriers in the post-Act world, it is our sincere hope that we will
be as sensitive to these concerns as we believe the Commission has been in this proceeding.
Most of all, we must keep in mind that the equal access and nondiscrimination requirements
need to be consistent with the transition from monopoly to a competitive paradigm and
should not invalidate or further burden carriers' current activities. It is because of the
Commission's wise decision to postpone resolution of these and other issues related to section
251(g) until we can examine them more thoroughly that we are happy to support the Order
as strongly as we do here.

We commend the Commission staff for its diligent and speedy work on these
complex and elusive issues. Moreover, we look forward to working together with everyone
at the Commission as we revisit the issues of equal access and nondiscrimination and as we
consider the many novel business arrangements that competition will no doubt bring us.

1. As the Order correctly indicates, section 271 has two underlying objectives. First, section 271 seeks
to bring additional competition to the long distance market by offering BOCs the potential opportunity to
participate in that market. Second, by conditioning BOC entry into the in-region interLATA market on
whether the BOCs' local exchange markets are open to competition, section 271 also seeks to facilitate entry
into those markets. See generally 47 U.S.C. § 271.

2. Of course, one can debate the level and permanence of competition in telecommunications today. It
is undeniable, however, that competition is and will continue to be more robust and extensive than it was at
the time of AT&T's divestiture.

4. The idea of considering factual differences in assessing what precautions regulators should take
against unlawfully discriminatory conduct was not unknown to the MFJ court. For example, in approving a
consent decree for GTE that was less burdensome than the MFJ, Judge Green noted expressly that facts that
are different from those implicated in the breakup of AT&T could justify different methods of preventing
anticompetitive behavior than were used in the AT&T cases. See United States v. GTE Corp., 603 F. Supp.
730, 736 (D.D.C. 1984) ("For these reasons, the Court concludes that the GTE situation is sufficiently different
from that which was before the Court when it was presented with a consent decree in AT&T that the public
interest does not necessarily require here the remedy that was adopted there."); see also id. at 733-37.

6. Thus, for example, one could argue that it would be easy for a court to make unconditional
statements regarding BOC favoritism when all marketing of long distance was considered provision of long
distance. As the Order recognizes, marketing and provision are not synonymous under the Act. Compare 47
U.S.C. § 272(g)(2) with 47 U.S.C. § 271(a) and 47 U.S.C. § 271(b).

7. See, e.g., United States v. AT&T, No. 82-0192, slip op. at 3 (D.D.C. Apr. 11, 1985) (concluding
without explanation that "by granting to National an endorsement of quality, Southwestern Bell has violated
the non-discrimination provision of section II(B) of the decree"). One also could reasonably argue that the
court deciding the BOC Calling Card case meant to limit its consideration of the appropriateness of the
restrictions it enforced to the time and the facts before it. See United States v. Western Electric Co., Inc., 698
F. Supp. 348, 356 (D.D.C. 1988) ("Any Regional Company advertising at this juncture will have the direct
foreseeable effect of promoting AT&T services over those of the other interexchange carriers.") (emphasis
added).

8. Likewise, it would seem counter-intuitive if equal access obligations designed primarily for BOCs
had the collateral effect of prohibiting GTE (which has similar obligations) from teaming with unaffiliated long
distance companies; GTE does not have to satisfy section 271 and it has been able to provide long distance in
some fashion since before the Act was passed. United States v. GTE Corp., 603 F. Supp. 730, 733 (D.C. Cir.
1984) (approving consent decree permitting GTE to acquire Sprint long distance company). Again, from the
perspective of preventing unlawfully discriminatory conduct, we should presumably be more concerned that
an incumbent LEC will have the incentive and ability to favor unfairly its own long distance affiliate as
opposed to a non-affiliated long distance company.

9. We fully recognize, however, that other glosses on Congress' intent are not without support in the
statute.

11. United States v. Western Electric Co., 552 F. Supp. 131 (D.D.C. 1982), aff'd sub nom., Maryland v.
United States, 460 U.S. 1001 (1983), vacated. Indeed, one could argue that the nondiscriminatory
interconnection obligations imposed on all incumbent LECs by section 251(c)(2) were meant to encompass
the duty to provide equal access and nondiscriminatory treatment to long distance companies. See 47 U.S.C.
§ 251(c)(2) (requiring incumbent LECs to provide to "any telecommunications carrier" interconnection that is
"equal in quality" to the interconnection LEC provides itself and that is "on rates, terms, and conditions that
are . . . nondiscriminatory"). This could mean, for example, that the Commission merely needs to clarify that
the interconnection obligations imposed in the Local Competition Order were sufficient to satisfy section
251(g).